U.S. District Judge Terrence McVerry of Pittsburgh refused to throw out the lawsuit Valencia McClatchey filed in 2005 against The AP.

McClatchey, who lives along Osage Path in Indian Lake Borough, grabbed her camera when she heard a “boom” and saw smoke as she was watching TV coverage of planes hitting the World Trade Center and the Pentagon on Sept. 11, 2001.

She told The Tribune-Democrat in a September interview that she managed to snap just the one photo – and didn’t recognize its significance until later.

The compelling photo of the smoke against a blue sky with a red barn and rolling hills in the foreground has come to symbolize how the war on terror began in the hills of Somerset County.

She titled it “End of Serenity” and received federal copyright protection for the photo in January 2002, according to the lawsuit.

It turned out that the photo is the only one of the immediate aftermath of the Flight 93 crash.

An enlarged version is on display at the Smithsonian Institution in Washington, D.C.

The AP used the photo with a story about McClatchey and also put it on a downloadable database without her permission, McClatchey asserts. She is seeking at least $150,000 in damages, plus any profits AP realized.

The AP has denied copyright infringement and has sought to have the judge dismiss the lawsuit.

McVerry rejected the AP’s contention that its use was permissible under a “fair use doctrine.”

The wire service contends McClatchey consented to the use of the photo, but the judge said a factual dispute exists on that issue.

AP’s story about McClatchey was written after the one-year anniversary of 9/11. The day that she was interviewed by an AP reporter, an AP photographer identified as Gene Puskar went to her home to photograph her for the story.

“The crux of this case involves the details of the interaction between Mr. Puskar and Ms. Mc-Clatchey,” the judge said.

McClatchey contends Puskar snapped a photo of her photograph that included her title and the copyright information, but later cropped them out.

She contends the story and photo were distributed as separate items to AP’s 2,000 Photo-Stream member news organizations without her permission.

She later learned it was being used on AOL’s home page.

AP contends its use of the photo was proper and was done with McClatchey’s consent.

McVerry was assigned the case this year after U.S. District Judge Kim Gibson, a Somerset County resident who presides in the Johnstown federal court, removed himself from the case to avoid the appearance of a conflict.

McVerry has not yet set a trial date. But he has set a pretrial conference for April 20 in Pittsburgh.

McClatchey’s attorneys al-ready have filed a pretrial statement, and the AP’s is due Wednesday.

Printed credit information on a photograph composed using a computer program may constitute “copyright management information” whose alteration is prohibited under the Digital Millennium Copyright Act, the U.S. District Court for the Western District of Pennsylvania ruled March 9 (McClatchey v. Associated Press, W.D. Pa., No. 3:05-cv-145, 3/9/07).

Denying the Associated Press's motion for summary judgment, the court sustained claims by a woman who took a picture of the hijacked United Airlines airplane that crashed in Pennsylvania on Sept. 11, 2001.

Plane Crashed Near Plaintiff's House.

On the day of the terrorist attacks, Valencia M. McClatchey of Shanksville, Pa., was a witness to the crash of United Flight 93 near her house. She photographed her view of a column of smoke rising from the wreckage. She gave the image the title “The End of Serenity” and registered it with the U.S. Copyright Office. The image has been displayed in public on several occasions, and McClatchey licensed the image several times for one-time use by news organizations and sold copies of it.

In 2002, Charles Sheehan, a writer for the Associated Press, met McClatchey and wrote an article about her. Then, Gene Puskar, an AP photographer, was assigned to take a photograph to accompany Sheehan's article. The photograph subsequently distributed on the AP's photo wire was an image of “The End of Serenity.”

In 2003, McClatchey discovered that “The End of Serenity” was posted on America Online's Web site accompanying a story about a conspiracy theory. McClatchey learned that AOL had obtained the image from the AP.

McClatchey sued, alleging that Puskar had photographed a print of “The End of Serenity” in McClatchey's photo album and then had cropped out the copyright information. McClatchey alleged copyright infringement, contributory and vicarious infringement, and removing copyright information and distributing false copyright information.

The AP--arguing that the copy McClatchey had at home did not include copyright information and that the use was fair use--moved for summary judgment on all claims.

Fair Use Claim Survives Motion.

Judge Terrence F. McVerry first determined that the court could not resolve the fair use issue at the summary judgment stage because there existed outstanding questions of material fact. First, the court said, the use made by the AP might reasonably be construed as a commercial rather than educational use. The court, noting that the AP distributed the image separately from Sheehan's article without any notation that the two must be used together, said:

The text of the article focused on the woman who took the “End of Serenity” photograph and Ms. McClatchey believed that Puskar was taking a photograph of her holding that photograph. A year [had] passed from the time of the crash depicted in the photograph and the article described the events in [McClatchey]'s life during that year. Although the photograph certainly depicts a newsworthy event, that event was no longer timely and had been extensively chronicled. Thus, there was arguably no significant “newsworthiness” in disseminating the photograph, by itself, a year later.

The remaining three fair use factors could also be reasonably judged as weighing in McClatchey's favor after a full examination of the facts, the court concluded.

Turning to the secondary liability claims, the court concluded that there did seem to be some evidence of secondary infringement by the AP's subscribers, and that McClatchey had pleaded prima facie cases for both contributory and vicarious infringement.

Printed Information Might Be Protected.

Section 1202(a) prohibits the provision and distribution of false “copyright management information.” Section 1202(c) creates eight categories of such information that is conveyed together with copies of works.

The AP argued that those provisions did not apply here, because the copyright notice on McClatchey's photographs was an ordinary printed or written notice, not digitized code accompanying a digitized work.

The court concluded that McClatchey's use of a computer program to print hard copies of her photograph with the copyright information qualified as copyright management information under the DMCA. Citing IQ Group Ltd. v. Weisner Publishers LLC, 409 F.Supp.2d 587 (D.N.J. 2006), the court said:

Ms. McClatchey testified in her deposition that she used the My Advanced Brochures software program on her computer, in a two-step process, to print the title, her name and the copyright notice on all printouts of the photograph. The Court finds that this technological process comes within the digital “copyright management information” as defined in the statute. Moreover, Section 1202(c) defines the term broadly to include “any” of the information set forth in the eight categories, “including in digital form.” To avoid rendering those terms superfluous, the statute must also protect non-digital information.

The full text of McClatchey v. Associated Press will be published in an upcoming issue of Media Law Reporter.

April 03, 2007

Valencia McClatchey, an amateur photographer who claims The Associated Press pirated her historic picture of the Sept. 11 attacks, is entitled to her day in court, a Pittsburgh judge has ruled.

Mrs. McClatchey took the picture seconds after hijacked United Airlines Flight 93 crashed near her home in Somerset County.

Her photo shows a blue sky, a red barn and a towering cloud of gray smoke from the downed jet, whose 44 passengers died in the crash near Shanksville.

Mrs. McClatchey received a federal copyright for the photo in January 2002, four months after snapping it.

She says Associated Press photographer Gene Puskar surreptitiously copied the photo later in 2002 and the wire service distributed it to 2,000 news organizations without her permission.

Lawyers for the AP counter that the wire service used the photo with her consent.

"We vigorously disagree with Mrs. McClatchey and will respond in court at the appropriate time," said Michael Berry, an AP attorney.

U.S. District Judge Terrence McVerry last month denied the AP's motion for summary judgment. He told both sides to file summaries of their cases before a pretrial conference April 20.

Mrs. McClatchey, 51, says in her lawsuit that she agreed to be photographed with her picture for an AP story marking the one-year anniversary of the attacks.

She says Mr. Puskar duped her by taking a photograph of her photograph. She claims he also cropped the photo to remove the copyright notice.

Lawyers for the AP say Mrs. McClatchey's account is untrue. In her deposition, they said, she admitted that the only copy of the photo in her home was a framed one that did not carry any mention of the copyright.

Once the AP distributed the photo without her authorization, Mrs. McClatchey says, it appeared in The Washington Post and Philadelphia Daily News.

Before her trouble with the AP, Mrs. McClatchey had licensed the use of her photo to various news organizations, including the Pittsburgh Post-Gazette, Newsweek and ABC. She generally charged $250 to $350 for one-time use of the picture, admitting she did not know how much freelance photographers commanded.

She is seeking $150,000 in damages, contending the AP was guilty of "willful infringement" of the copyright.

Aside from marketing the photo to news companies, Mrs. McClatchey sold personal copies. She charged $20 for each, $18 of which went to the Todd Beamer Foundation. Mr. Beamer was a passenger on Flight 93. The rest of the money from personal sales went for paper and printing costs, her lawyers said.

(Milan Simonich can be reached at msimonich@post-gazette.com or 412-263-1956. )